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United States Court of Appeals 

for the 

District of Columbia Circuit 



TRANSCRIPT OF 
RECORD 





BRIEF AND APPENDIX 
FOR APPELLANT 






30Ur?T0F A«- KtALS FOR THE 
D 1STKlCT UK UGt-UMBiA 


United States 


m THi il ® Ju » 1 : 91841 

LourFot Appe 



ERK 


for the District of Columbia 


No. 7845 


CHARLES J. JACOBSEN, Appellant; 



V. 

NORVELLE H. JACOBSEN. 


Appeal from Order Denying Motion to Quash Writ of Ne 
Exeat in the District Court of the United States for the 
District of Columbia. 


Robert E. Lynch, 

Attorney for Appellant, 
821 15th Street, N. W., 
Washington, D. C. 


Pszss or Byeon S. Adams, ■Washington, D. 0. 



INDEX. 

Subject Index. Page 

Jurisdictional Statement . 1 

Statement of Case . 2 

Statement of Points... 4 

Summary of Argument. 4 

Argument. 5 

Table of Cases Cited. 

Church v. Church, 50 App. D. C. 239; 270 Fed. 361. 5 

Engle v. Manchester, 46 App. D. C. 220 . 8 

Ginsberg & Sons v. Popkin, 285 U. S. 204. 10 

Hollidge v. Crumpler, 63 App. D. C. 330; 72 Fed. (2d) 

381. 8 

Jastram v. McAuslam, 31 R. I. 274; 76 A. 648. 10 

McPartland v. McPartland, 261 N. Y. Supp. 847; 146 

Misc. 672 . 12 

Prescott v. Prescott, 95 N. J. E. 173; 122 A. 611. 6 

Shainwald v. Lewis, 46 Fed. 839 . 12 

Statutes Involved. 

28 U. S. C. A. sec. 376 (Judicial Code Sec. 261, 36 Stat. 

1162). 12 

Title 18, Sections 44, 57, Code of Laws for the District 

of Columbia. 1 

Title 18, Section 26, Code of Laws for the District 
of Columbia. 1 



















IN THE 


I 


United States Court of Appeals i 

for the District of Columbia 


Term, 1941. 


No. 7845. 


i 


CHARLES J. JACOBSEN, Appellant , 

v. 

NORVELLE H. JACOBSEN, Appellee. 


BRIEF AND APPENDIX FOR APPELLANT. 


JURISDICTIONAL STATEMENT. 

| 

This is an appeal from an order of the District Court! of 
the United States for the District of Columbia refusing to 
quash a Writ of Ne Exeat and continuing said Writ in 
force. The said Writ was issued after final decree in a idi- 
vorce suit between the parties. The jurisdiction of the 
lower court is supported by Title 18, Sections 44 and 57, 
of the Code of Laws for the District of Columbia. Tkiis 


Court has jurisdiction upon appeal by virtue of Title 
Section 26, of said Code. 


18, 









2 


STATEMENT OF CASE. 

Upon complaint for divorce, alimony and custody of child 
filed by appellee in the District Court in June, 1935, that 
Court in June, 1935, ordered alimony pendente lite and cus¬ 
tody of child to appellee and, thereafter, in February, 1937, 
entered a final decree of divorce a mensa et thoro in favor 
of appellee, as well as awarding custody of child and main¬ 
tenance for appellee and child. (Appellant’s App. 2.) 

In January, 1941, appellee filed complaint for Writ of 
Ne Exeat (Appellaint’s App. 3), and the District Court, in 
an ex parte proceeding, ordered the Writ to issue (Appel¬ 
lant’s App. 6); and appellant posted a thousand dollar 
bond. A motion to discharge the Writ of Ne Exeat for 
want of jurisdiction was timely filed (Appellant’s App. 10), 
and denied by the Court on February 20,1941. (Appellant’s 
App. 17.) Thereafter, a motion for rehearing and recon¬ 
sideration of this motion, together with a motion to dis¬ 
charge the Writ of Ne Exeat on the merits, was filed on 
P^ebruary 28, 1941 (Appellant’s App. 17), which said mo¬ 
tion was also denied on March 31, 1941. (Appelant’s App. 
23.) 

All of the proceedings involved in this appeal occurred 
subsequent to the final decree of the Court awarding the 
appellee a divorce a mensa et thoro . Appellee’s original 
complaint was filed in June, 1935, and from that month 
appellant complied with the order of Court for temporary 
alimony and maintenance for his wife and child until the 
final hearing of the cause which occurred in February, 1937, 
resulting in a decree for a divorce a mensa et thoro , ali¬ 
mony and custody of child to the appellee. This final de¬ 
cree was complied with until January 15, 1939, when ap¬ 
pellant’s employment, through no fault of his, was ter¬ 
minated, and from early in 1939 to January, 1941, he was 
in arrears under the final decree. 

Appellant was employed at Norfolk, Virginia, from Feb¬ 
ruary, 1938, until the first part of 1939 (Appellant’s App. 
20), and while out of the jurisdiction and employed com- 



3 


plied with the order of Court. (Appellant’s App. 20.) 
After the loss of his regular employment, he did odd jjobs 
in Virginia, Maryland and the District of Columbia and 
earned a total sum during these two years of approximate 
Two Hundred Seventy-five dollars. (Appelant’s App. ^0.) 

Appellant attempted, without success, to secure an abso¬ 
lute divorce in the courts at Norfolk, Virginia, and there¬ 
after secured a Reno, Nevada, divorce. 

While residing in Reno, Navada, appellant was indicted 
by a grand jury in the District Court of the United States 
for the District of Columbia, said indictment being (re¬ 
turned in the month of October, 1940. Appellant was Ar¬ 
rested in Reno, Nevada, and, in order to secure his release 
from jail, a thousand dollar bond was posted for him. j A 
member of the bar of this Court, representing appellant, 
advised him that extradition proceedings would be insjti- 
tuted unless he voluntarily returned to the District of Co¬ 
lumbia and gave bond in the District Court therein, whijch 
would have to occur on or before February 1, 1941. (Ap¬ 
pellant’s App. 13-14.) In view of the instructions from his 
counsel, appellant returned to the District of Columbia the 
latter part of December, 1940, and thereafter furnished 
bond for his appearance in the criminal case. (Appellant’s 
App. 13.) While appellant was still in the District of Co¬ 
lumbia appellee filed her petition for a Writ of Ne Exeat on 
the 13th day of January, 1941. (Appellant’s App. 3.) 

Motion to quash the Writ of Ne Exeat was filed on t^e 
ground that appellant w r as in the jurisdiction in response 
to a criminal indictment and was exempt from civil process. 
(Appellant’s App. 10.) This contention was overruled and, 
thereafter, appellant asked for a reconsideration on thjs 
ground and answered the complaint for a Writ of Ne Exeat 
on its merits (Appellant’s App. 17), and this also w$s 
denied, and the Writ of Ne Exeat continued in force. (Ap¬ 
pellant’s App. 23.) It is from this action that the appel¬ 
lant appeals. 



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STATEMENT OF POINTS. 

1. The District Court should have granted the motion 
to quash on the ground that the Court was without jurisdic¬ 
tion to issue the Writ of Ne Exeat. 

2. The District Court erred in continuing the Writ of 
Ne Exeat in force after the appellant had answered the 
petition for the Writ on the merits. 

SUMMARY OF ARGUMENT. 

I. 

The District Court was without jurisdiction to issue the 
Writ of Ne Exeat because its appears that he was involun¬ 
tarily appearing in the District of Columbia as a result of 
an indictment pending against him for non-support. Ap¬ 
pellant was required to appear in the District Court and 
answer indictment or else be forcibly returned by extra¬ 
dition ; and, in either event, his presence in the District of 
Columbia "would be involuntary, and the Court would, there¬ 
fore, have no jurisdiction to issue the Writ of Ne Exeat. 

II. 

After the Court had refused to quash the Writ of Ne 
Exeat on the jurisdictional ground, the Court was requested 
to grant a rehearing and a reconsideration of this motion 
or, in the alternative, to discharge the Writ of Ne Exeat 
on the merits. The appellant urged the lower court that, 
on the merits as set forth in the complaint for the Writ of 
Ne Exeat filed on behalf of appellee, there were not suffi¬ 
cient facts set forth which would warrant the issuance of 
the Writ, and as appellant had answered the petition on 
its merits the Court was requested to consider the answer 
of the appellant and lo take testimony on any disputed 
question of fact raised by the pleadings which would bear 
on the question of whether or not the Writ was properly 
issued. Something more than mere absence from the juris¬ 
diction and failure to comply with a decree for alimony 


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must be shown before the Writ of Ne Exeat will issue. The 
Court denied the motion for a rehearing on the jurisdic¬ 
tional ground and on the merits, and continued the Mfrit 
in force. 

ARGUMENT. 

POINT I. 

I 

The Court Should Have Quashed the Writ of Ne Exeat j on 
the Ground that the Court Was Without Jurisdiction 

i 

to Issue the Same. 

Appellant’s motion to discharge the writ of ne exeat \sfas 
based on the contention that his presence and appearance 
in the District of Columbia was involuntary. The plead¬ 
ings show without contradiction that he had been indicted 
for non-support and by his affidavit it is disclosed that Ins 
attorney, Mr. Cummins, had agreed with the District At¬ 
torney that he would appear to answer the indictment be¬ 
fore February 1, 1941. (Appellant’s App. 13-14) Extra¬ 
dition proceedings were held in abeyance pending the ap¬ 
pellant’s appearance to answer the indictment. Appellant 
was arrested on, to-wit, October 22, 1940 in Reno, Nevacja, 
on the District indictment, and his affidavit (Appellant’s 
App. 12) discloses that his bond of $1,000.00 given in Renjo, 
Nevada, was posted as security “for his return to the Dis¬ 
trict of Columbia on or before February 1, 1941.” Appel¬ 
lant was taken into custody by the United States Marshal’s 
Office on January 16, 1941. (Appellant’s App. 9) He had 
returned to the District the latter part of December, 1940. 

The Appellant’s presence in the District to answer the 
criminal indictment rendered him immune from service pf 
process. This Court in the case of Church v. Church, 50 
App. D. C. 239; 270 Fed. 361, specifically held that a de¬ 
fendant in answering a criminal case is immune from ser¬ 
vice of process when in the District of Columbia. In the 
Church case the wife sued the husband and service was hajd 
on him as he vras leaving the courthouse after trial of an 
indictment charging him with non-support. One of thje 


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contentions was that he voluntarily appeared because he 
did not insist upon formal extradition proceedings. The 
court however held that whether extradited or not he was 
required to answer the criminal case and his presence was 
involuntary. The court said at page 241: 

“By coming voluntarily the defendant removes an 
obstacle to the administration of justice and saves the 
expense and trouble of extradition. Is it not in the 
interest of a sound public policy that this should be 
encouraged? 

“But did the appellant come voluntarily? He knew 
that if he did not appear his attendance in all proba¬ 
bility would be compelled through extradition proceed¬ 
ings. Such an appearance can hardly be said to be 
voluntary. In a case where the facts were quite simi¬ 
lar, the court held that the defendant did not come 
voluntarily. U. S. v. Bridgman, supra. 

“But, whether we view his appearance as voluntary 
or involuntary, we think the privilege attached to him, 
and that the service should have been quashed.’’ 

In Prescott v. Prescott , 95 N. J. E. 173, 122 A. 611, the 
court was presented with a set of facts practically identi¬ 
cal with those in the case at bar. Prescott returned to New 
Jersey from New York at the request of the New Jersey 
Probation Officer in connection with his non-support trial. 
While in the state for that purpose, the ne exeat was issued 
and he was taken into custody. Motion to quash was filed 
and granted. The court, among other things, said: 

“The least objection made to the release of this 
prisoner is that, in the Michaels on case, the court was 
only dealing with the service of summons and capias, 
and that therefore it should not extend to process of 
ne exeat. In so arguing, counsel loses sight of the 
reason for the rule and the breadth of its sweep. No 
further argument is required for us to see that the 
purpose of the rule is to encourage parties and wit¬ 
nesses to come voluntarily within a jurisdiction where 
they could not be compelled so to do, in the advance¬ 
ment of the administration of justice. It is, as Mr. 
Justice Parker says, a practical rule, intended to se- 



7 


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cure the greatest good in the largest number of crises, 
and it cannot be denied that fear of arrest under a 
writ of ne exeat would be quite as deterring to a phrty 
outside of the jurisdiction as the service of a sumihons 
of capias upon him.” i 

The judge in refusing to quash the writ held that j the 
writ could be served legally and was a quasi-criminal pro¬ 
ceeding and not a civil action. j 

Counsel has found no case which holds that a ne efyeat 
is a quasi-criminal proceeding, but on the contrary the 
court can only issue the writ of ne exeat in an equity pro¬ 
ceeding, and this therefore makes it a civil proceeding^ 

Apparently appellee and her counsel both believe t|hat 
if he were in the District to answer a criminal indictment 
he would be immune from service because we find the fol- 
lowing in the complaint requesting the "writ of ne exeat\: 

“Complainant is further informed and believes tjiat 
if defendant is unsuccessful in defending the said ex¬ 
tradition proceeding, and is brought to the District, 
she would even then be unable to obtain service! of 
either process against him in the proceeding because 
of the fact that his presence in this jurisdiction would 
then be under the compulsion of the criminal prose¬ 
cution for non-support. ” 

The court should have granted the motion to quash tlhe 
writ on the ground that the appellant was immune frprn 
service. 

Appellee’s counsel knew that the appellant’s extraditijon 
hearing w T as scheduled to be heard in February 1941, fpr 
we also find the following in the complaint requesting issu¬ 
ance of the writ: j 

“On information and belief complainant avers that 
the hearing on said extradition proceeding has beSn 
postponed until some day during the month of Feb¬ 
ruary of this year, and that the defendant is at liberty 
under bail to return to the state of Nevada for the 
said extradition proceeding.” 


I 


I 


8 


Appellant’s affidavit (Appellant’s App. 15) shows that 
he had posted a $1,000.00 bond in the District Court for 
the District of Columbia in answer to the non-support in¬ 
dictment. 

A decision of this Court which held a party is immune 
from service of civil process while in the jurisdiction for 
the purpose of being a witness or a party to a criminal 
proceeding, is Hollidge v. Crumpler, et ciL, 63 App. D. C. 
330; 72 Fed. (2d) 381. 

This Court has even gone so far as to hold that a party 
is entitled to a privilege of immunity from service of proc¬ 
ess 'while in voluntary attendance upon any judicial hear¬ 
ing wherein his interests are involved. Engle v. Manches¬ 
ter, 46 App. D. C. 220. In the Engle case the Court said: 

“There has been a division of opinion in the state 
courts upon whether the privilege is limited to actual 
arrest upon civil process without extending to exemp¬ 
tion from ordinary civil process, but the tendency has 
been constantly to enlarge the right of privilege so as 
to afford full protection to suitors and witnesses from 
all forms of process of a civil character during their 
attendance before any judicial tribunal, and for a rea¬ 
sonable time in going and returning. This doctrine 
seems to be established bv the weight of authoritv.” 

POINT II. 

The Court Erred in Not Quashing the Writ on the Merits. 

Appellee’s complaint praying for the issuance of the writ 
contains onlv two statements which in anv wise tend to 
show any authority for the issuance of the writ. They are: 

(1) “That according to this complainant’s informa¬ 
tion and belief since July 1939, the defendant herein 
has remained away from the jurisdiction of this court 
for the sole purpose of evading process of this pro¬ 
ceeding and to avoid the payment of alimony awarded 
herein for the maintenance of this petitioner and their 
child, except for short visits to bis relatives in the 
District made by the defendant over weekends when 
process was not obtainable.” (Appellant’s App. 4) 




9 


and 

i 

(2) “Complainant herein is informed and believes 
that the defendant is now in the District visiting his 
relatives and that he is about to return to the state of 
Nevada and to there resist efforts to have him re¬ 
turned to the District in said proceeding, all for the 
sole purpose of avoiding his duty to contribute to!the 
support of this complainant and his minor child, and 
to avoid compliance with the decree of this Honor¬ 
able Court, in the above entitled proceeding.” (Ap¬ 
pellant’s App. 5) 

The order for temporary alimony and maintenance en¬ 
tered by the court in June 1935 provided for the payment 
of $25.00 per week to appellee. (Appellant’s App. 2) Tjhis 
was paid. In February 1937 the final decree provided for 
the sum of $100.00 per month. (Appellant’s App. 3) Tjhis 
was paid until January 15, 1939—almost two years—when 
it appears without contradiction that appellant lost !his 
position through no fault of his own. (Appellant’s App. 
20) It should also be remembered that from February! of 
1938 until the summer of 1939 appellant was in the sthte 
of Virginia. He complied with the order of the court for 
a period of approximately one year while he was out of 
the jurisdiction. (Appellant’s App. 20) Of course it wofild 
have been better for appellant to have immediately applijed 
for a modification of the final decree upon losing his posi¬ 
tion. Why it was not done is not disclosed by the record] 
Appellant’s answer to the complaint for the writ (Ap¬ 
pellant’s App. 18) states that he did return to the District 
on many occasions and that his visits were for many days 
and were not so timed to avoid service of process. ljle 
admitted that he was not in the District from August 19^0 
until his return in December 1940. It further appears thiat 
he received no salary from January 1939 until he secured 
employment in the District in January 1941, except fbr 
odd jobs and that his total earnings from January 19$9 
to and including December 1940 approximated $275.0(0. 
The answer further shows that he specifically returned to 




10 


the District because he had been advised by his attorney 
that he would be extradited if he did not. (Appellant’s 
App. 20) It specifically denied that he ever remained away 
from the jurisdiction of the District court for the purpose 
of avoiding compliance with the decree or of avoiding proc¬ 
ess. (Appellant’s App. 20) 

The record further shows that he secured employment at 
$20.00 per week subsequent to his return to the District 
and offered to pay to the support of his child the sum of 
$7.50 per week, which the appellee refused. (Appellant’s 
App. 14-15) She is employed and receives $130.00 per 
month. 

A party applying for ne exeat has the burden of satisfy¬ 
ing the court that the defendant intends to depart the state 
in order to avoid the performance of the process of court. 
The Supreme Court of Rhode Island in the case of Jastram 
v. McAuslam, 31 R. I. 274; 76 A. 648, considered the neces¬ 
sary allegations before a writ of ne exeat should issue, and 
held that the application for the writ did not state sufficient 
facts. The court used this language: 

“The greatest extent to which any of the authorities 
appear to go in granting a writ of ne exeat is that it 
should be issued only, first, upon an affidavit of facts, 
sworn to from the knowledge of the affiant, and not 
upon his information, from which facts the court can 
deduct the intention to leave the state to avoid the 
court’s decree, or, second, upon facts sworn to upon 
information, accompanied by the positive allegation of 
the petitioner, based on the information, that there is 
an intention to leave the state to avoid the decree of 
the court.” 

The Supreme Court of the United States in the case of 
Ginsberg & Sons v. Popkin, 285 U. S. 204, discusses the 
power of the court to allow writs of ne exeat . The Gins¬ 
berg case was not a divorce case, but the issuance of the 
writ has never been limited solely to divorce actions. The 
court at pages 208-9 said: 



11 


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“ Assuming that under section 2 bankruptcy courts 
are empowered to allow writs of ne exeat, that graiited 
in this case wras without warrant, for conditions made 
essential by the common law and as well by the judi¬ 
cial Code were lacking. 

* 4 Speaking for the Supreme Court of Wisconsin in 
Davidson v. Rosenberg, 130 Wise. 22; 109 N. W. ^25, 
Mr. Justice Winslow described the writ of ne exeat as 
follow’s: ‘At common law it was simply a writ to! ob¬ 
tain equitable bail. It was issued by a court of equity 
on application of the complainant against the defen¬ 
dant when it appeared that there was a debt positively 
due, certain in amount or capable of being made per¬ 
tain, on an equitable demand not suable at law (expept 
in cases of account and possibly some other cases of 
concurrent jurisdiction), and that defendant was about 
to leave the jurisdiction, having conveyed away j his 
property, or under other circumstances which wo uld 
render any decree ineffectual. Dean v. Smith, 23 Wise. 
483. Rhodes v. Cousins, 6 Rand. 188, 191,18 Am. Bee. 
715; Gibert v. Colt, 1 Hopk. Ch. 496, 14 Am. Bee. 557, 
and note.’ 

“The writ is a restraint upon the common righij; of 
movement from place to place within the United States 
and upon emigration. It has been abolished in some 
states and its use is largely regulated and restricted 
by statute in others. And section 261 of the Judicial 
Code strictly governs the granting of the writ in Fed¬ 
eral courts.” 

I 

The Ginsberg Case states it must appear, among otjbier 
things, “that the defendant W’as about to leave the jurisdic¬ 
tion, have conveyed away his property, or under other cir¬ 
cumstances wdiich would render any decree ineffectual”, j It 
is very clear that the appellee in her complaint sets forth! no 
facts but relies on the vague generality “information dud 
belief”. If the appellant was about to leave the Bistrict of 
Columbia, some one should be able to swear to that fact. 
If he had stated to some one that he was going to av^id 
service of process and not be available to comply with the 
decree of Court, some one should be able to swear to that 
fact. If he had transferred any property, some record 


J 

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12 


would, of necessity, show that fact. It is no wonder that 
most States have outlawed the Writ of Ne Exeat, because 
of the great abuse and injustice which it is capable of fos¬ 
tering. 

Attention is particularly called to 28 U. S. C. A., Section 
376 (Judicial Code, Sec. 261, 36 Stat. 1162), which permits 
Writs of Ne Exeat to be issued by any District Judge, but 
states specifically “no Writ of Ne Exeat shall be granted 
unless a suit in equity is commenced, and satisfactory proof 
is made to the Court or Judge granting the same that the 
defendant designs quickly to depart from the United 
States.’’ 

Many of the States have abolished the Writ of Ne Exeat 
for various reasons which have appealed to the legislatures. 
Appellant was not charged with any criminal offense and yet 
if his relatives had not come to his assistance he would lan¬ 
guish in jail in default of the One Thousand Dollar 
($1,000.00) Bond. Even where a defendant fails to comply 
with the order of Court and contempt proceedings are in¬ 
stituted against him and the Court finds that he is in 
contempt, after serving a short period of time, usually thirty 
(30) days, in jail, he is free to proceed about his business. 
Where the Writ of Ne Exeat, as in this case, prohibits the 
appellant from going beyond the jurisdiction of the District 
of Columbia, it is really worse than being charged with the 
criminal offense or a wilful refusal to comply with the order 
of Court. 

In Shainwald v. Lewis , 46 Fed. 839, the Court holds that 
a mere allegation upon information and belief that the de¬ 
fendant will and intends to leave and depart from a State, 
which averment is denied by answer, is insufficient. 

In the case of McPartland v. McPartland, 261 N. Y. Supp. 
847,146 Misc. 672, the Court quashed the Writ of Ne Exeat 
which had theretofore been issued. The wife had contended 
in this case that the husband intended in leaving the juris¬ 
diction; this he denied. The Court said: “The deprivation 
of one’s liberty is a matter of serious moment, and, when the 
determination of such question must be made upon a sharply 
disputed issue of fact, I think every reasonable doubt must 


I 


be resolved in favor of the one whom it is sought to least 
into jail, even upon a civil process”. 

A careful examination of appellee’s Complaint request¬ 
ing the issuance of the Writ of Ne Exeat shows that prac¬ 
tically no facts are set forth which would be sufficient for 
the Court to conclude that appellant was about to leavq the 
jurisdiction or had conveyed or was about to convey a|way 
his property or any other circumstances which would Ren¬ 
der ineffectual the decree of the Court. Her Complaint is 
mostly conclusions based upon “information and belief”’ 
The child of the parties hereto is a young one and! ap¬ 
pellee apparently proposes to continue the writ against the 
appellant until the child reaches her majority and until jshe, 
if ever, remarries. It would appear if this decision is | not 
reversed that all she has to do is to advise the Court i^pon 
information and belief that the appellant is about to ldave 
the jurisdiction in order to avoid the order of the Court. A 
statement of the hardship that the issuance of the Writ! en¬ 
tails clearly shows that the Court should require the strong¬ 
est type of allegations supported by facts which unmisiak- 
inglv show that the appellant is about to render ineffectual 
the jurisdiction of the Court. i 

The record shows that appellant for over three and 0ne- 
half (. 31 / 2 ) years paid alimony and maintenance at the ijate 
of One Hundred Dollars ($100.00) per month. During (the 
last year of this time he was out of the jurisdiction. After 
he lost his employment the record shows that he was j in¬ 
dicted for non-support; he was sent to jail for contemipt; 
and the appellee now proposes to restrain him perpetually 
from leaving the District of Columbia. 

The order of the District Court refusing to quash the Ser¬ 
vice and continuing the Writ of Ne Exeat in force and effect 
should be reversed and the Court directed to quash the Writ. 

Respectfully submitted, 

Robert E. Lynch, 

Attorney for Appellant, 
821 15th Street, N. W., 
Washington, D. C. j 



APPENDIX 


INDEX TO APPENDIX TO BRIEF FOR APPELLANT. 


Subject Index. 

Page 

Memorandum, Bill of Complaint for Limited Divorce 1 
Memorandum, Motion for Alimony Pendente Lite with 

Affidavit and Notice ..'. 1 

Memorandum, Answer of Charles J. Jacobsen, Defen¬ 
dant . 1 

Order for Alimony and Custody of Minor Child Pen¬ 
dente Lite. 2 

Decree for Limited Divorce. 2 

Complaint for Rule in Contempt and for Writ of Ne 

Exeat. 3 

Order to Issue Writ of Ne Exeat. 6 

Plaintiff’s Affidavit . 7 

Marshal’s Return to Writ of Ne Exeat Issued January 

13, 1941. 9 

Motion to Discharge Writ of Ne Exeat, and to Dis¬ 
charge Rule to Show Cause in Contempt, and to 
Dismiss Complaint for Rule in Contempt and Writ 
of Ne Exeat, for the Want of Jurisdiction of This 

Court Over the Person and Subject Matter. 10 

Affidavit in Support of Motion. 12 

Defendant’s Affidavit in Reply to Plaintiff’s Affidavit 13 
Order Overruling Defendant’s Motion to Discharge 

Writ of Ne Exeat, Etc. 17 

Motion for Rehearing and Reconsideration of the De¬ 
fendant’s Motion to Discharge Writ of Ne Exeat 
for Want of Jurisdiction and Alternative Motion 
to Discharge Writ of Ne Exeat on the Merits .... 17 

Answer to Complaint for Rule in Contempt and Rule 

to Show Cause Issued Thereon. 18 

Affidavit of C. F. Jacobsen. 23 

Order Overruling Defendant’s Motion for Rehearing 
and Reconsideration of Defendant’s Motion to 
Quash Service of Writ of Ne Exeat and to Dis¬ 
charge Writ of Ne Exeat. 23 

Notice of Appeal. 24 

Assignment of Errors or Points on Which Appellant 
Expects to Rely Upon Appeal .... f ,.24 


















IN THE 


United States Court of Appeals 

for the District of Columbia 


No. 7845. 


CHARLES J. JACOBSEN, Appellant , 


v. 


NORVELLE H. JACOBSEN. 


Appeal from the District Court of the United States 
for the District of Columbia. 


APPENDIX TO BRIEF FOR APPELLANT. 


PLEADINGS. DOCKET ENTRIES AND OTHER PAPERS 
DESIGNATED BY APPELLANT. 


44 


Memoranda 


June 19—1935 

Bill of Complaint for Limited Divorce—filed. 

Motion for Alimony Pendente Lite with Affidavit bnd 
Notice—filed. 


June 25—1935 

Answer of Charles J. Jacobsen, Defendant—filed. 


* 


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2 


45 Order for Alimony and Custody of Minor 

Child Pendente Lite. 


Upon consideration of the Motion for Alimony pendite 
lite, the affidavit attached thereto, filed herein with plain¬ 
tiff’s original Bill of Complaint, and the agreement of the 
Plaintiff and defendant through their counsel to the pass¬ 
ing of this Order, it is by the Court this 25th day of June, 
1935, 

ORDERED, That pendente lite custody of the infant 
daughter of the plaintiff and defendant, Karla Jacobsen, 
be, and the same is hereby awarded to the plaintiff, Nor- 
velle H. Jacobsen with the privilege to the defendant to 
visit and have the custody of said infant child for any one 
day at various times without interference or molestation 
to the defendant. 

It is further ORDERED That the defendant pay to the 
plaintiff through her counsel of record, alimony pendente 
lite for the maintenance and support of the plaintiff and 
their minor child, the sum of Twenty-five Dollars forthwith, 
and a like sum on Monday of each week after the date 
hereof, until further order of the Court. 


DANIEL W. O’DONOGHUE, 
Justice. 


We consent: 

CHARLES L. NORRIS, 
Attorney for Plaintiff. 
LYON & LYON, 

Attorneys for Defendant. 


#.# • # m * * * * * 

2 Decree for Limited Divorce. 

This cause having come on for hearing at this term of 
Court and the pleadings and proofs having been duly con¬ 
sidered, it is by the Court this 25th day of February, 1937, 
ADJUDGED, ORDERED and DECREED, that the 
plaintiff, Norvelle H. Jacobsen, be and she hereby is 



I 


3 ! 

i 

J 

awarded a divorce A Mensa Et Thoro from tlie defendant 
upon the ground of cruelty. 

That the permanent custody of the infant daughter of 
the plaintiff and defendant, Carla Jacobsen, be and the same 
is hereby awarded to the plaintiff, Norvelle H. Jacobsen, 
with the privilege to the defendant to visit and have tjie cus¬ 
tody of said infant child for any one day at various, times 
without interference to the defendant. 

That the defendant, Charles J. Jacobsen, be, and h^ here¬ 
by is, directed to pay to the plaintiff permanent alimony 
for the maintenance and support of the plaintiff and their 
minor child, the sum of Fifty Dollars on the first and Fity 
Dollars on the 15th of each month beginning on the fijrst of 
March, 1937, and the said defendant is hereby directed to 
pay to the plaintiff the taxable costs of this suit apd to 
Charles L. Norris as counsel for the plaintiff in thi^ pro¬ 
ceeding the sum of One Hundred Dollars. j 

DANIEL W. ODONOGHUE. 

Justice. | 

# # * * * • # • * • 

I 

3 Complaint for Rule in Contempt and for Writ j 

of Ne Exeat. 

' i 

Your complainant, Norvelle H. Jacobsen, respectfully 
represents: j 

1. That a final decree of limited divorce upon the grounds 
of cruelty was awarded unto her by this Honorable Court 
in the above-entitled proceeding on the 25th day of Feb¬ 
ruary, 1937, and by said decree of limited divorce the de¬ 
fendant was required to pay permanent alimony for the 
Maintenance and support of the plaintiff and her minor 
child, the sum of Fifty ($50.00) Dollars on the 1st day and 
Fifty ($50.00) Dollars on the 15th day of each monthj be¬ 
ginning on the 1st day of March, 1937 and the plahjtiff 
w’as awarded custody of said minor child of the parties. 

2. That the defendant has failed and refused to abide' by 
the said decree of divorce in that he has paid no alimony 


| 

| 

j 

i 



4 


accruing under the provisions of said decree since the in¬ 
stallment which became due January 1, 1939, which install¬ 
ment the defendant paid April 4, 1939. 

3. Accordingly, the defendant is in contempt of the terms 
of said decree in the full sum of Two Thousand four hun¬ 
dred ($2,400.00) Dollars for failure to pay the installments 
due Januay 15, 1939 to January 1, 1941. 

4. That on or about February 2, 1938, the defendant 
moved to Norfolk, Virginia, where he claims under affida¬ 
vits heretofore filed in Civil Action No. 3743, in this Hon¬ 
orable Court during August and September of 1939 to 
have established a residence in the State of Virginia. 
That on July 13,1939, the defendant filed a suit for divorce 
against the plaintiff herein in the Circuit Court of the City 
of Norfolk, Virginia, alleging as grounds therefor the mat¬ 
ters which had been determined in this court in Equity 
proceeding No. 58909, and thereafter in November of 1930 
the said Virginia Court dismissed the suit for divorce of 
the said Charles J. Jacobsen on the grounds that the mat¬ 
ters complained of were Res Adjudicata by the de- 

4 cree of this Honorable Court. That thereafter on 
the 19th day of September, 1940, the said Charles J. 
Jacobsen filed a suit for absolute divorce in the city of 
Reno, state of Nevada, against the complainant herein, al¬ 
leging as grounds thereof the same matters which had pre¬ 
viously been adjudicated between the parties in this Hon¬ 
orable Court. In said Reno divorce proceeding the said 
Charles J. Jacobsen claimed therein to have established 
a legal residence in the State of Nevada. This complain¬ 
ant being then without funds was unable to contest said 
Nevada divorce proceeding and thereafter a decree of di¬ 
vorce was entered in said proceeding by defendant on Octo¬ 
ber 2,1940, granting unto the said Charles J. Jacobsen a de¬ 
cree of divorce against the defendant named therein, who is 
the petitioner herein. 

That according to this complainant’s information and be¬ 
lief since July, 1939, the defendant herein has remained 
away from the jurisdiction of this court for the sole pur- 


5 


pose of evading process in this proceeding and to avoid 
the payment of alimony awarded herein for the mainte¬ 
nance of this petitioner and their minor child, except ifor 
short visits to his relatives in the District of Columbia 
made by the defendant over week ends when process was 
not obtainable. That during such periods when the de¬ 
fendant would visit his relatives in the District of Colukn- 
bia this complainant has caused repeated efforts to be made 
by the United States Marshal’s Office to serve process on 
the defendant, all of which have failed due to the defen¬ 
dant’s avoidance thereof and the secretiveness surround¬ 
ing his visits until after he had left the District of Columbia. 

This complainant on information and belief avers tfyat 
the Grand Jury in the District of Columbia indicted the 
defendant for non-support and that he was arrested in the 
state of Nevada in extradition proceedings instituted to 
effect his return and trial in the District of Columbia for 
non-support. On information and belief the complainant 
avers that the hearing on said extradition proceeding has 
been postponed until some day during the month of Feb¬ 
ruary of this year, and that the defendant is at liberty 
under bail to return to the state of Nevada for said extra¬ 
dition proceeding. 

Complainant herein is informed and believes that the 
defendant is now in the District of Columbia visiting jhis 
relatives and that he is about to return to the state of Ne¬ 
vada and to there resist efforts to have him retikrn 
5 to the District of Columbia in said proceeding jail 
for the sole purpose of avoiding his duty to cpn- 
tribute to the support of this complainant and his mi^ior 
child, and to avoid compliance with the decree of this hon¬ 
orable court, in the above entitled proceeding. Complain¬ 
ant is further informed and believes that if defendant! is 
unsuccessful in defending the said extradition proceeding 
and is brought to the District of Columbia, she would eVen 
then be unable to obtain service of valid process against 
him in this proceeding because of the fact that his pifes- 







6 


ence in this jurisdicton would then be under the compulsion 
of the criminal prosecution for non-support. 

5. By reason of the premises, complainant avers that if 
the defendant is permitted to leave the jurisdiction of this 
court that he will thereby successfully avoid compliance 
with the decree of this court and thereby deprive her of 
all practical means of forcing the payment due her under 
the decree of this court. 

WHEREFORE, plaintiff respectfully demands: 

1. That a Rule be issued by this Court directing the de¬ 
fendant, Charles J. Jacobsen, to appear before it and show 
cause, if any he has, why he should not be adjudged in con¬ 
tempt of court for his failure to comply with its order for 
payment to the petitioner. 

2. That the defendant be held in contempt of court. 

3. That the Clerk of this Court be directed to issue the 
Writ of Ne Exeat to prevent the said Charles J. Jacobsen, 
from leaving this jurisdiction of this Court pending a de¬ 
termination hereof. 

3. For such other and further relief as to the court may 
seem just and proper. 

(S) NORVELLE H. JACOBSEN, 

3600 N. H. Ave. N. W. 

Wash. D. C. 

(S) CHARLES L. NORRIS, 

(S) JOSEPH I. CAVANAUGH, 

2135 Pennsylvania Ave. N. W., 

Washington, D. C., 

Attorneys for complainant. 

• *#•#■##*** 

52 Order to Issue Writ of Ne Exeat 

Upon consideration of the petition of Norvelle H. Jacob¬ 
sen filed herein on the 13th day of January, 1941, it is by the 
court this 13th day of January, 1941, 



Ordered, that the clerk of the court shall forthwith issue 
unto the defendant, Charles J. Jacobsen, the writ of pNTe 
Exeat and that the penal sum to be fixed in the bond to be 
required of the defendant shall in the sum of $1000.00. 

• • • • # * # * • | • 

8 Plaintiff’s Affidavit 

District of Columbia, ss : 

Norvelle H. Jacobsen, being first duly sworn, on oath de¬ 
poses and says that she is the plaintiff herein and makes 
this affidavit in support of the writ of ne exeat and rulej to 
show’ cause herein: 

That the plaintiff and her child have been domiciledj in 
the District of Columbia w’ithout interruption since the 
marriage of the plaintiff and defendant; but some time prior 
to July 12,1939, the defendant removed to the State of Vir¬ 
ginia for the purpose of seeking a decree of divorce in that 
state; that he w*as unsuccessful and shortly after the final 
determination of the Virginia suit, defendant moved on to 
the State of Nevada and, after the required six weeks’ pres¬ 
ence there, instituted the divorce action referred to in de¬ 
fendant’s affidavit and motion herein; that sometime be- 
tween October 22d, 1940, and Christmas, 1940, the defendant 
reappeared in the District of Columbia and resumed resi¬ 
dence at his father’s home and obtained employment with 
the Barker Lumber Company, which employment, affiant is 
informed and believes, defendant still retains. 

That plaintiff is informed by the United States District 
Attorney for the District of Columbia, and therefore be¬ 
lieves, that the defendant’s attorney and father did confer 
with said District Attorney in October, 1940, and did agree, 
as substantially set forth in defendant’s motion and affi¬ 
davit, that if the criminal action would be deferred uptil 
February 1,1941, he, the defendant, would in the meantime 
return to the District of Columbia and obtain permanent 
employment in said District and contribute to the support 
of the plaintiff and their child. 

That the defendant is employed by one of the largest lum¬ 
ber companies in the District of Columbia, of whjich 


8 


9 corporation, the defendant’s father is vice-president 
and a principal stockholder, and in such position can 
insure the defendant permanent employment and fix his in¬ 
come. 

Further, the defendant’s father is also president of one 
of the foremost banks in the District of Columbia, and plain¬ 
tiff is informed, and therefore believes, that the defendant’s 
father supported said defendant during the latter’s sojourns 
in the states of Virginia and Nevada, and paid the expenses 
of the litigations in those jurisdictions; 

Further, that upon the defendant’s apprehension in the 
State of Nevada, the defendant’s father caused a certified 
check in the amount of One Thousand Dollars ($1,000.00) 
to be deposited with the United States Attorney in lieu of 
bond; that upon the defendant’s apprehension under the 
writ of lie exeat herein on January 16, 1941, defendant’s 
father deposited the further sum of One Thousand Dollars 
($1,000.00) in cash, with the United States Marshal for the 
District of Columbia, in lieu of bond; that, on January 17, 
1941, bail bond in the additional sum of One Thousand Dol¬ 
lars ($1,000.00) was furnished in the criminal action re¬ 
ferred to in the defendant’s affidavit and motion herein. 

That defendant is now residing with his father in the lat¬ 
ter’s fashionable and expensive residence at 1619 Decatur 
Street, N. W., in the District of Columbia, and living accord¬ 
ing to his father’s station in life and position in the com¬ 
munity, but has made none of the decree semi-monthly ali¬ 
mony payments that have fallen due since his return from 
Nevada. 

That, since the filing of plaintiff’s complaint for rule here¬ 
in, a further alimony payment of Fifty Dollars ($50.00) has 
become due under the final decree of this Court, but has not 
been paid. 

That the plaintiff was not served with process in the di¬ 
vorce proceedings set forth by the defendant within the ter¬ 
ritorial jurisdiction of the Court of the State of Nevada, but 
was handed a copy of the said court’s process and of the 



9 


defendant’s complaint while she was in the District of Co¬ 
lumbia. 

NORVELLE H. JACOBSEN 

10 Subscribed and sworn to before me this 30th day 
of January, 1941. 

L. M. FOX j 

(Notarial Seal) Notary Public, D. C. 

I hereby certify that I have served a copy of the abbve 
Affidavit, together with Plaintiff’s Points and Authorities, 
upon Elmer E. Cummins, Esquire, attorney of record for 
the defendant, by mailing same, postage prepaid, to him| at 
his office address, Earle Building, Washington, this 2]9th 
day of January, 1941. 

JOSEPH I. CAVANAUGH 
Attorney for Plaintiff. 

T. ALAN GOLDSBOROUGH, 

Justice . 

* # * # # # * * # j * 

53 Marshal’s Return to Writ of Ne Exeat Issued 

January 13,1941 

The within writ executed, by the posting of a bond | of 
$1,000 cash, for the defendant, Charles J. Jacobsen, Per¬ 
sonally, by Stanley D. Willis, January 16, 1941. JohnjB. 
Colpoys U. S. Marshal in and for the D. of C. By W.jB. 
Robinson Jr. Deputy U. S. Marshal. 

March 10, 1941. Cash Security of $1000.00 returned to 
Stanley D Willis, and substituted by a Bond of $1000.00 by 
the Fidelity & Deposit Company of Maryland JOHN B. 
COLPOYS U. S. Marshal in and for the D. of C. By 
M Kearney—Chief Deputy U. S. Marshal K— 


10 

54 Motion to Dicharge Writ of Ne Exeat, and to Dis¬ 

charge Rule to Show Cause in Contempt, and to 
Dismiss Complaint for Rule in Contempt and Writ 
of Ne Exeat, for the Want of Jurisdiction of This 
Court Over the Person and Subject Matter. 

Comes now Charles J. Jacobsen, defendant in the above 
entitled cause, by and through his attorney, Elmer E. Cum¬ 
mins, appearing specially for the purpose of this motion 
and none other, requesting the Court to discharge the writ 
of Ne Exeat, and to discharge the rule to show cause in con¬ 
tempt, and to dismiss complaint for rule in contempt and 
writ of Ne Exeat, filed by the plaintiff herein, for the want 
of jurisdiction of this Court over the person and subject 
matter, and for reasons states as follows: 

1. That the service of the rule to show cause in contempt, 
■writ of Ne Exeat, and complaint for rule in contempt versus 
the defendant was had at a time when said defendant was 
involuntarily appearing in the District of Columbia, as a re¬ 
sult of an indictment pending against him for nonsupport of 
a minor child, in destitute and necessitous circumstances, 
same being numbered 66597, wherein the plaintiff in the 
above entitled cause is named as the complainant; that sev¬ 
eral months prior to the issuance of the writ of Ne Exeat in 
the above entitled cause, the defendant was required to de¬ 
posit a bond in the sum of One Thousand Dollars ($1,000.00), 
as security for his return to the District of Columbia on or 
before February 1, 1941, and remain therein until the final 
deposition of the aforesaid indictment, which is now 

55 pending against him in the Criminal Branch of this 
Court; that the defendant’s attorney, Elmer E. Cum¬ 
mins, entered into an agreement with Judge Edward M. 
Curran, United States District Attorney for the District of 
Columbia, during the month of October, 1940, at which time 
it was mutually agreed between the said District Attorney 
and Elmer E. Cummins that the aforesaid indictment would 
be permitted to lie dormant and inactive until February 1, 
1941, and that no action would be taken before the afore- 


/ 


11 

j 

I 

said date, provided the defendant obtained permanent '.em¬ 
ployment and agreed to pay a reasonable portion of i his 
weekly earnings to the plaintiff for the maintenance of j the 
infant child of the parties hereto; that this defendant, 
through his counsel has complied with this agreement, jand 
has offered to pay over and unto the plaintiff herein more 

than one-third of his weeklv salary for the maintenance and 
• * " 
support of said infant child. 

2. That the Court does not have jurisdiction over the per¬ 

son of the defendant and the subject matter herein, by Rea¬ 
son of the fact that the defendant did on, to wit, the 22nd 
day of October, 1940, obtain an absolute divorce from j;he 
plaintiff herein in the District Court of the Second Judicial 
District of the State of Nevada, in and for the County! of 
Washoe; that it appears from the records in the aforesjaid 
Court, and also on the records of the United States Mar¬ 
shals’ Office for the District of Columbia, that the plaintiff, 
Norvelle H. Jacobsen, was personally served with process of 
the said divorce action. No. 65,685, Dept. No. 2, whertin 
Charles J. Jacobsen is named as plaintiff, and Norvelle 'H. 
Jacobsen is named as defendant; that although personally 
served with a true copy of the aforesaid divorce proceed¬ 
ings, the said defendant failed to file an answer, demurrer, 
motion, or other defense or appearance whatsoever, but jin 
lieu thereof, allowed the said divorce to be entered by de¬ 
fault. | 

3. And for such other and further reasons as may be pre¬ 
sented to the Court at the hearing of this motion. 

ELMER E. CUMMINS j 
Attorney for Defendant , 
Appearing Specially for the 
purpose of this Motion and 
none other. 

Earle Building, 
Washington, D. C. 


i 

i 

I 


12 


56 Affidavit in Support of Motion 
District of Columbia, ss : 

Charles J. Jacobsen, being first duly sworn, on oath de¬ 
poses and says, that he is the defendant in the above en¬ 
titled cause, wherein Norvelle H. Jacobsen is named as 
plaintiff; that on or about October 22, 1940 he was arrested 
by the United States Marshal in the State of Nevada, as a 
result of a certain warrant which was caused to be filed by 
the plaintiff herein in the District of Columbia a few days 
prior thereto, in which he was indicted by a grand jury in 
the District Court of the United States for the District of 
Columbia, for nonsupport of a minor child; that on the 
aforesaid date he caused to be posted in the said State of 
Nevada a bond in the sum of One Thousand Dollars 
($1,000.00) as security for his return to the District of Co¬ 
lumbia on or before February 1, 1941, and remain therein 
until final disposition of said indictment in said Court; that 
on, to wit, January 16, 1941, at which time he was involun¬ 
tarily remaining in the District of Columbia, your affiant 
was arrested by a Deputy United States Marshal in and for 
the District of Columbia, as a result of a writ of Ne Exeat, 
rule to show cause in contempt, and complaint for rule in 
contempt and writ of Ne Exeat, which were caused to be 
filed by the plaintiff herein; that he was again required to 
post a bond in the sum of One Thousand Dollars ($1,000.00), 
as security for his presence in the District of Columbia at 
all times. That on, to,wit, October 22, 1940, he obtained an 
absolute divorce from the plaintiff herein, in the District 
Court of the Second Judicial District of the State of Nevada, 
in and for the County of Washoe; that the United States 
Marshals’ records of the District Court of the United 

57 States for the District of Columbia indicate that the 
plaintiff herein, Norvelle H. Jacobsen, was personally 

served with a copy of the said divorce proceedings; that the 
records of the aforesaid Nevada Court indicate that the 
plaintiff, Norvelle II. Jacobsen, failed to appear and de¬ 
fend said cause of action, and further failed to file any an- 



13 


swer, demurrer, motion, or other defense; that the afore¬ 
said Nevada Court had full jurisdiction over the plaintiff 
and the defendant. 

Further, affiant states that through his counsel, he has 
agreed, in keeping with a certain agreement entered into! be¬ 
tween Judge Edward M. Curran, United States District jAt- 
torney for the District of Columbia, and Elmer E. Cummins, 
to pay a weekly sum in excess of one-third of his weekly 
earnings to the plaintiff herein, as a result of the aforesaid 
indictment for nonsupport which is now pending against 
him. 

CHARLES J. JACOBSEN j 

Subscribed and sworn to before me this 22nd day of Jjan- 
uary, 1941. 

CHARLES H. IRVING, 3d, i 

Notary Public , D\ C. 
11 Defendant’s Affidavit in Reply to Plaintiff’s Affidavit 

District of Columbia, ss : 

Charles J. Jacobsen, being first duly sworn, on oath (de¬ 
poses and says that he is the defendant herein, and makes 
this affidavit in reply to the plaintiff’s affidavit filed herein, 
and further in support of his motion to discharge the wfrit 
of Ne Exeat, heretofore filed herein. 

That on or about the 16th day of December, 1940 he in¬ 
voluntarily returned to the District of Columbia as a resjult 
of an indictment then pending against him in this Coiirt, 
wherein the plaintiff herein was named as complainant; that 
it was mandatory for him to return to this jurisdiction, bv 
reason of a One Thousand Dollar ($1,000.00) cash bdnd 
posted in the District Court of the Second Judicial District 
of the State of Nevada at a time when affiant was incarcer¬ 
ated in jail in said State, as a result of being arrested by 
Federal Authorities when they executed the aforesaid wAr- 
rant for non-support of a minor child; that the aforesaid 
bond was a guarantee and security for his return to tljiis 
city on or before February 1, 1941, in accordance with) a 



14 


certain agreement had between his counsel and Judge Ed¬ 
ward M. Curran, United States District Attorney for the 
District of Columbia, and that by reason of said agreement 
with the said District Attorney, it was mandatory for your 
affiant to appear in this jurisdiction on or before February 
1, 1941 and continue to remain therein until the final dis¬ 
position of the aforesaid indictment; that when your affiant 
returned to this city, as aforesaid, he was unemployed 
12 and it became necessary for him to depend on his 
friends and relatives for his maintenance and sup¬ 
port, and that while remaining in this city, until such time 
as he could plead to the aforesaid indictment, he obtained 
permanent employment on January 15, 1941 at the Barker 
Lumber Company, at a weekly salary of Twenty Dollars 
($20.00); that the position at the Barker Lumber Company 
is the first permanent employment your affiant has been suc¬ 
cessful in obtaining since the Spring of the year 1939; that 
affiant will not be able to pursue his daily occupation at the 
said Barker Lumber Company if the writ of Ne Exeat re¬ 
mains in full force and effect, as his employment with said 
company requires him to make contacts with contractors 
and builders in the suburbs of the District of Columbia, such 
as Silver Spring, Maryland, Alexandria, Virginia, Falls 
Church, Virginia, and numerous other small towns just out¬ 
side the District of Columbia, in order to sell the products of 
said company; that in the event he is restricted for an in¬ 
definite period of time from pursuing his duties in this re¬ 
spect, he will be discharged. 

Affiant further states that on, to wit, January 17,1941, he 
offered to maintain and support the infant child of the par¬ 
ties hereto, by the payment of a sum in excess of one-third 
of his weekly salary, and that this offer was made to the Dis¬ 
trict Attornev of the United States for the District of Co- 
lumbia, as a result of the aforesaid indictment for non-sup¬ 
port; that upon information and belief, your affiant states 
that the aforesaid District Attorney considered said sum 
fair and reasonable and conveyed this offer to the plaintiff’s 
counsel, at which time the said District Attorney informed 


15 


plaintiff’s counsel, in substance, that in the event the plain¬ 
tiff did not agree to the acceptance of said offer tendered! by 
the defendant, he would not prosecute the defendant on ithe 
non-support charge, as he considered the said offer fair gnd 
reasonable, taking into consideration the defendant’s saliry 
and his first permanent position since 1939. Affiant further 
states, upon information and belief, that to the date of the 
making of this affidavit, the plaintiff has not agreed to Ac¬ 
cept said sum, and, therefore, affiant assumes that the wfit 
of Ne Exeat and rule to show cause in contempt were 
13 filed for the purpose of persecuting your affiant j in 
lieu of prosecuting him, as the infant child of tjhe 
parties hereto is in daily attendance at the fashionable 
Countryside School, and the plaintiff herein now, and hjas 
been employed by the Potomac Electric Power Company iat 
a salary of One Thousand Four Hundred and Forty Dollars 
($1,440.00) a year. To further substantiate the statement 
as to the persecution of your affiant, he states that at tjie 
present time, although he is permanently employed, His 
relatives have been required by reason of his past uneijn- 
plovment to post the sum of One Thousand Dollajrs 
($1,000.00) as a cash bond in the District Court of tl(ie 
Second Judicial District of the State of Nevada, a One 
Thousand Dollar ($1,000.00) bond in this Court as a resujlt 
of the non-support indictment, and a One Thousand Dollar 
($1,000.00) cash bond as a result of the writ of Ne Exe^t, 
which was issued at a time when the plaintiff was advisejd 
that your affiant was permanently employed at the Barker 
Lumber Company; that all of the said bonds, which amouijt 
to the sum of Three Thousand Dollars ($3,000.00) are stifl 
in full force and effect at the time of the signing of thijs 
affidavit. 

Further answering, your affiant states that he is now pei|- 
manently employed by the aforesaid company, and that ijt 
is his intention and desire to remain in the District of Co¬ 
lumbia and pursue his daily occupation, as this is the first 
permanent employment your affiant has been successful iiji 
obtaining since the month of April, 1939. 


16 


Your affiant admits that another payment in the sum of 
Fifty Dollars ($50.00) has become due under the final decree 
of this Court, but affiant states that when the said order was 
signed, he was treasurer of the Thomason Company, Inc., a 
corporation, and was receiving a monthly salary in the sum 
of Two Hundred Sixty Dollars ($260.00), and as a result of 
said salary, he consented to the entry of said final decree; 
that during the month of April, 1939 he was discharged and 
before being discharged your affiant did not receive his 
salary for three months prior thereto; that your affiant 
did consistently comply with said order by paying to 
the plaintiff the sum of One Hundred Dollars ($100.00) a 
month until January 15, 1939, this date being the 
14 last date on which he received his salary at the rate 
of Two Hundred Sixty Dollars ($260.00) a month; 
affiant further states that his failure to comply with the said 
order of this Court, dated February 25, 1937, has not been 
wilful or contemptuous, but on the contrary he states that 
he has been unemployed and unable to support himself since 
January 15, 1939 until January 15, 1941, at which time he 
obtained permanent employment, as aforesaid. 

CHARLES J. JACOBSEN 

Subscribed and sworn to before me this 4th day of Feb¬ 
ruary, 1941. 

DOUGLAS A. CLARK 

(Notarial Seal) Notary Public, D. C. 

ELMER E. CUMMINS 

Attorney for Defendant 
Earle Building 
Washington, D. C. 

I hereby certify that on this 4 day of February, 1941, I 
mailed, postage prepaid, a true copy of the foregoing affi¬ 
davit of the defendant, to Joseph I. Cavanaugh, one of the 
attorneys for the plaintiff, at 2135 Pennsylvania Avenue, 
N. W., Washington, D. C. 

ELMER E. CUMMINS 
Attorney for Defendant . 


17 


i 

i 
i 

i 

i 

i 

i 

i 

i 

I 

58 Order Overruling Defendants Motion to 

Discharge Writ of Ne Exeat, Etc. j 

Upon consideration of the defendant’s motion to dis¬ 
charge writ of ne exeat, to discharge rule to show cause j in 
contempt, and to dismiss complaint for rule to show caijse 
in contempt for want of jurisdiction over defendant’s per¬ 
son and subject matter, the same having come on for oral 
argument by counsel, it is by the Court this 20th day iof 
February, 1941, | 

Adjudged, Ordered and Decreed That the defendant’s 
motion to discharge writ of ne exeat, his motion to discharge 
rule to show cause in contempt, and his motion to dismiss 
complaint for rule in contempt be, and they all hereby aije, 
overruled. j 

T. ALAN GOLDSBOROUGH j 

Justice 

j 

No objection to form of order, 

ELMER E CUMMINS 
Attorney for Defendant. 


60 Motion for Rehearing and Reconsideration of the 
Defendant’s Motion to Discharge Writ of Ne 
Exeat for Want of Jurisdiction and Alternative 
Motion to Discharge Writ of Ne Exeat on the 
Merits 


Comes now the defendant and moves the Court as follows!: 
1. For a re-hearing and a reconsideration of the defen¬ 
dant’s motion to discharge the writ of ne exeat for want of 

1 

jurisdiction, which was heretofore filed in this cause, supp 

ported by affidavits, and which was overruled by the Court 

on February 20, 1941. This motion was based on the facjt 

that the defendant was under indictment in the District of 

Columbia for non-support; had been arrested in the Stats 

of Nevada, where he was then residing; and the hearing oil 

* 

extradition was set on or about February 1,1941, which pro-j 
ceedings would have resulted in his forcible return to thej 


I 



18 


District of Columbia. The record further shows that the 
defendant was advised that it would be necessary for him 
to return and he was directed by his counsel to return before 
February 1, 1941. The record further discloses that while 
in the District of Columbia, to answer the indictment 
against him, the Court issued a writ of ne exeat on the 
plaintiff’s application. 

2. The defendant, by counsel, also moves the Court in 
the alternative, should the above motion be denied, that the 
writ of ne exeat heretofore issued be quashed, and dis¬ 
charged, for the reason that the plaintiff’s petition for said 
writ fails to set forth facts sufficient to warrant the issuance 
of the said writ of ne exeat, and that the entire record fails 
to show facts sufficient to authorize the issuance of the said 
writ. 

3. The defendant requests the Court to take testimony 
in open Court on any disputed question of fact raised by the 
pleadings which would bear on the question of whether the 
writ was properly issued. 

ELMER CUMMINS 
ROBERT E. LYNCH 
821 15th Street, N. W., 
Washington, D. C., 

Attorney for defendant. 

15 Answer to Complaint for Buie in Contempt and 
Bide to Show Cause Issued Thereon 

The defendant, for answer to the complaint for rule in 
contempt, states as follows: 

1. He admits the allegations contained in paragraph one 
of the Complaint. 

2. He admits that he is in arrears the payment of alimony 
from January 15, 1939, to date. 

3. Answering the third paragraph, defendant denies 
that he is in contempt of Court, for reasons which will here¬ 
after be shown, but does admit that the sum of $2400.00 is 
due under the said order of Court. 


19 


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4. Defendant admits that he moved to Norfolk, Virginia, 
in February of 1938, and states that this was done because 
the firm with which he was employed moved to that city gnd 
it was necessary that he reside in Norfolk for business pur¬ 
poses. He admits that he claimed that he was a resident! of 
the State of Virginia at that time. Defendant admits that 
he filed suit in the Virginia courts, but is without knowledge 
as to the grounds on which the court disposed of said ca|se, 
but is advised that an appeal was taken but that later shid 
appeal was dismissed. Defendant admits that he filed a shit 
for absolute divorce in September of 1940, in Reno, Nevada, 
and states that as a result of said suit, he was granted! a 
decree of absolute divorce from the plaintiff. The defen¬ 
dant is advised it is unnecessary for him to answer the legal 
conclusions contained in said fourth paragraph of the cojn- 
plaint. 

Further answering the said fourth paragraph, defendalnt 
states that he is not advised as to whether the plaintiff was 
able to contest the Reno proceedings, but is advised that the 
Court would have appointed an attorney for her or required 
provision to be made for her expenses incident to the de¬ 
fending of said suit, had she wished to contest it. 
16 Defendant denies that since July, 1939, he has re¬ 
mained away from the jurisdiction of this Court fqr 
the purpose of evading process and to avoid the payment <j)f 
alimony awarded in the final decree of this cause. He admits 
that he has made several visits to the District of Columbia 
and states that some of his visits were for many days, arjd 
that the visits were not so timed as to avoid service of proc¬ 
ess, as he was here on week days on many occasions. De¬ 
fendant is without information as to the efforts of the plain¬ 
tiff to have him served with process and denies that any 
failure was due to avoidance thereof or secretiveness sur¬ 
rounding his visits. Defendant states that since August of 

1940, he has not been in the District of Columbia until hi!s 
7 # 9 
return in December of 1940, the details of which are ex¬ 
plained in other affidavits filed herein. 

Defendant states that due to the fact that the firm with 
which he was employed moved to Norfolk, Virginia, he was 

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20 


required to leave the District of Columbia on, to wit, Feb¬ 
ruary of 1938, and remained with the said firm until May, 
1939, in Norfolk, Virginia. However, he states that he re¬ 
ceived no salary from January, 1939, for the reason that the 
company became financially embarrassed; and as he had a 
financial interest in the company, he and others were at¬ 
tempting to save the company from financial ruin. That 
during most of the time that he was in Norfolk, Virginia, 
and during the time that he was in Washington, D. C., before 
leaving for Norfolk, he complied with the order of the Court 
requiring him to pay $100.00 per month for the support of 
his wife and child. It was not until he failed to receive 
compensation for his services in January, 1939, that he 
failed to make the payments as provided in the final decree 
of this Court. Subsequent to May, 1939, he attempted to 
secure work in Norfolk, Virginia, Washington, D. C., and 
Maryland, but was unable to obtain any work for any period 
of time except for a few jobs which were not enough to pay 
a living wage. During the period from January, 1939, to 
and including December, 1940, his total earnings approxi¬ 
mated $275.00, for this entire period. 

Defendant admits the indictment in the District of Co¬ 
lumbia for non-support and the extradition proceedings, 
but states that he was advised by his attorney that he should 
come to the District of Columbia to answer said indictment 
on or before February 1,1941, otherwise he would be extra¬ 
dited, and that is the reason for the defendant’s returning 
to the District of Columbia. 

Defendant denies that he is in the District of Co- 
IT lumbia for the purpose of visiting relatives and that 
he intends to return to Nevada, in order to resist 
efforts to have him return to the District of Columbia in the 
criminal proceedings, but states that he was advised that 
he would have to answer the criminal proceedings and has 
done so. He denies that he has ever remained away from 
the jurisdiction of the District of Columbia for the purpose 
of avoiding compliance with the decree of this Court or for 
evading its processes. 


21 


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5. Answering the fifth paragraph of the Complaint, de¬ 
fendant denies that he remained out of the jurisdiction! to 
defeat the decree of the Court or that he intends to leaive 
the jurisdiction for the purposes of defeating the jurisdic¬ 
tion of this Court. 

Defendant states that several years before the parties 
hereto separated, the father of the defendant opened 
account for the child of the parties hereto at the National 
Metropolitan Bank of this City, which was controlled by the 
plaintiff, and that defendant’s father made deposits frqm 
time to time in said account for the benefit of the said child 
and defendant believes that the plaintiff may have made 
deposits from time to time. That the account reached the 
sum of $445.00 on April 1, 1938. That in 1938, the sum bf 
$100.00 was withdrawn from the said account by the plaih- 
tiff and in 1939, the sum of $350.00 w T as withdrawn from the 
account by the plaintiff; that there is now T the balance in tljie 
said account of $34.68, as small deposits have been made in 
1938, and accrued interest credited to the account whicjh 
leaves the above balance. j 

Defendant further states that the said plaintiff controllejd 
an account for the said child in the Home Building Associa¬ 
tion, w T hich account in January of 1940, had a balance bf 
$126.27, and increased to $138.02, as of September 9, 1946, 
at vrhich time $100.00 was withdrawn by the plaintiff. 

Defendant further states that there was another savings 
account that defendant’s father had commenced for this 
child at the National Metropolitan Bank of this City, whicti 
was controlled by the defendant’s father. That the deposits 
were made in this account until the same reached the sum of 
$163.51, in April of 1940; and in June, 1940, $100.00 wa$ 
withdrawn from the said account, and in July, $50.00 was 
withdrawm from the said account, w’hich sum of $150.00 was 
sent to the plaintiff. 

Defendant recognizes his obligation to abide bjj 
18 the order of this Court and wdshes to comply with the* 
same and is at present employed at the salary ofj 
$20.00 per week, which employment has commenced as of| 
February 15, 1941. That he has offered to pay towards the| 

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22 


support of his child the sum of $7.50 per week, but he has 
been advised that the plaintiff has refused to accept this 
sum. 

Defendant states, upon information and belief, that the 
plaintiff is employed at the salary of approximately $125.00 
per month. Defendant further states that he attempted to 
secure employment in and around Washington, D. C., Mary¬ 
land, and Virginia, from May, 1939, to August, 1940, but 
was unable to do so, except for part-time work, which was 
not sufficient to purchase his own food and clothing. He 
had several contacts in Reno, Nevada, and had talked with 
a party who was of the opinion that his chances for securing 
employment there were good. 

Wherefore, the defendant prays that the rule to show 
cause may be discharged and the writ of ne exeat quashed, 
and reserves all the matters heretofore set forth in a motion 
to quash the said ne exeat heretofore filed in this cause. 

CHARLES J. JACOBSEN 

District of Columbia, ss: 

' i 

Charles J. Jacobsen, being first duly sworn, on oath de¬ 
poses and says that lie is the defendant in the above entitled 
cause; that he has read the foregoing and annexed Answer 
by him subscribed; that the statements of fact therein con¬ 
tained are true and those made upon information and belief 
he believes to be true. 

CHARLES J. JACOBSEN 

Subscribed and sworn to before me this 27th day of Feb¬ 
ruary, 1941. 

emily v. McKenzie 

(Notarial Seal) Notary Public, D. C. 

Com. Exp. 4/14/45. 

ELMER CUMMINS 
ROBERT E. LYNCH, 

821 15th Street, N. W., 

Washington, D. C., 

Attorney for Defendant. 


23 


19 Affidavit of C . F. Jacobsen 

District of Columbia, s$: 

C. F. Jacobsen, being first duly sworn, made oath that he 
is the father of the defendant and states that he is Vice- 
President of the Barker Lumber Company; a director ahd 
stockholder to the extent that he owns one (1) share of stock. 
Affiant states that he does not control the said Company <br 
its policies and that his only financial interest in the said 
Company is that he received a dividend of Four ($4.0()) 
Dollars on his one (1) share of stock for the year 1940. 

C. F. JACOBSEN 

I 

Subscribed and sworn to before me this 27th day of Feb¬ 
ruary, 1941. 

GEO B EARNSHAW 
(Seal) Notary Public, D. C. 

My Commission Expires Sept. 17, 1943. 

64 Order Overruling Defendant’s Motion for Rehearing 
and Reconsideration of Defendant’s Motion ip 
Quash Service of Writ of Ne Exeat and to Dis¬ 
charge Writ of Ne Exeat 

Upon consideration of the defendant’s motion for rehear¬ 
ing and reconsideration of the defendant’s motion to quash 
service of writ of ne exeat and to discharge writ of ne exeat, 
it is by the Court this 31st day of March, 1941, 

Adjudged, Ordered and Decreed That the defendant’js 
motion to rehear and reconsider be, and it hereby is, overj- 
ruled, and the order of February 20, 1941 stand, and the 
writ of ne exeat herein shall continue in force and effect^ 

T. ALAN GOLDSBOROUGH 
Justice. 


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65 Endorsed: Filed Apr 7—1941 Charles E. Stewart, 
Clerk 

Equity No. 58,909 
Norvelle H. Jacobsen, Plaintiff 
v. 

Charles J. Jacobsen, Defendant. 

Notice of Appeal 

Notice is hereby given this 7th day of April 1941, that 
Charles. J. Jacobsen hereby appeals to the United States 
Court of Appeals for the District of Columbia from the 
judgment of this Court entered on the 31st day of March, 
1941, in favor of Norvelle H. Jacobsen against said Charles 
J. Jacobsen 

R E LYNCH 
Attorney for Defendant 

67 Endorsed: Filed Apr 10—1941 Charles E. Stewart, 
Clerk 

Assignment of Errors or Points on Which 
Appellant Expects to Rely Upon Appeal 

Comes now the appellant and assigns as errors committed 
by the Court in the hearing of the above entitled cause the 
following: 

1. The failure of the Court to quash the Writ of Ne Exeat. 

2. The action of the Court in continuing the Ne Exeat in 
force and effect. 

ELMER CUMMINS 

ROBERT E. LYNCH 
821 15th Street, N. W., 
Washington, D. C., 

Attorneys for Defendant. 

Copy received this 10th day of April, 1941. 

CHAS NORRIS JR. 

Attorney for Plaintiff.